Nelson and Taunton Public Schools – BSEA # 10-8142

In Re: Nelson & Taunton Public Schools

BSEA: 10-8142

Ruling on Taunton’s Motion to Dismiss

This matter comes before the BSEA on the June 1, 2011 Motion of the Taunton Public Schools to Dismiss the Parent’s Appeal, and the June 24, 2011 Motion of the Taunton Public Schools to Strike the June 20, 2011 Pleadings in opposition. Taunton asserts that the Parent lacks standing to pursue the IDEA claim on behalf of her son, Nelson. Taunton further asserts that the Parent’s June 20 th submissions were unauthorized, untimely, and unfounded.

As this matter has a long and confusing procedural history a brief summary of the pertinent events is in order:

3. On May 17, 2011 the BSEA ordered the Parent to submit to the BSEA and Taunton by June 1, 2011, a notarized copy of the Student’s Election of Educational Decision-making authority pursuant to 20 U.S.C. § 1415 (M) and 603 CMR 28.07 (5).

4. On May 23, 2011 the Parent’s advocate withdrew from her representation of the Parent.

5. On May 25, 2011 the Parent alerted the BSEA to her change of address, requested a postponement of proceedings to permit her to secure representation by an attorney, and submitted a copy of a Power of Attorney executed by the Student appointing the Parent as his “attorney-in-fact.”

6. On May 31, 2011 the BSEA denied the Parent’s request to postpone the hearing scheduled for July 26 and 27, 2011.

7. Taunton submitted a Motion to Dismiss on June 1, 2011 asserting that the Power of Attorney submitted by the Parent (a) did not comport with the BSEA Order of May 17, 2011 and (b) is inconsistent with 603 CMR 78.07(5), which requires that the election of a student of majority age to share with, or delegate to, a parent her/his educational decision-making rights must be made in the presence of school district witnesses. Taunton also asserted that the matter should be dismissed because of the Parent’s continuing failure to follow other direct Orders from the BSEA.

8. On June 15, 2011, the Parent submitted a Motion for a Continuance. The BSEA denied the Motion on June 23, 2011.

9. On June 20, 2011, the BSEA received multiple submissions from the Parent’s former advocate purportedly on behalf of the Parent. These submissions were titled: “Motion to Oppose and Object to Taunton Public Schools Motion to Dismiss and Motion for an Independent Arbitor (sic) and Motion for Attorney Marguerite Mitchell’s Recusal.” The advocate was advised that since Parent had been acting pro se since the advocate’s withdrawal, a new Notice of Appearance would be required prior to consideration of the advocate’s submissions.

10. On June 24, 2011 Taunton submitted a Motion to Strike the Submissions of the Advocate asserting they were unauthorized, immaterial, impertinent and scandalous.

11. The advocate submitted a Notice of Appearance on June 27, 2011.

12. The BSEA acknowledged receipt of the Notice of Appearance on June 27, 2011 and wrote “please advise the BSEA in writing no later than July 1, 2011 as to whether you wish to have the Bureau consider the submissions you made in this matter prior to receipt of the Notice of Appearance.”

13. On July 1, 2011 the advocate wrote to the BSEA endorsing the June 24, 2011 submissions and requesting that they be considered as part of the BSEA ruling on Taunton’s Motion to Dismiss.

14. To date the Parent has not submitted Nelson’s Election of Educational Decision-making authority.

DISCUSSION

1. Motion to Strike

First, as noted in previous BSEA rulings, the Parent has uncertain representation in this matter and is therefore accorded substantial leeway and assistance in the presentation of her claims. Submissions and omissions that might warrant severe sanctions in other circumstances are construed here, to the extent possible, as a nuisance or better yet an educational opportunity. Nevertheless the contents of some documents submitted in this matter fall so far outside the bounds of decency, common sense, and good order and stand in such flagrant opposition to clearly stated BSEA Orders2 as to support action rather than mere disregard. The advocate’s submissions of June 20, 2011 are among these. Even a cursory review of the Parent’s advocate’s submissions reveals gross misstatements of fact and history, unsupported ad hominem attacks, vituperative and misleading language, and histrionic requests for “remedies” not authorized by any relevant statute or administrative process in contravention of previous BSEA guidance and Orders. They thus require repudiation in the strongest possible terms. Had an attorney submitted documents of this nature, i.e. scandalous, redundant, defamatory and frivolous, significant monetary sanctions would be warranted. The sanctions sections of most Rules of Civil Procedure contemplate financial awards that flow directly from the offending party’s pocket to the offended party’s purse to compensate for those reasonable expenses, including attorney’s fees, incurred in opposing frivolous claims or motions. See e.g. F.R.C.P. 11,26 and M.R.C.P. 8, 11, 37.

Here, where the Parent claims indigency3 , financial sanctions that directly affect the parent would be both inappropriate and impractical. Similarly, imposition of monetary sanctions on the advocate herself is likely to be both uncollectable and a distraction from the timely resolution of the Parent’s substantive claim. Furthermore, referral to a supervising or licensing authority for disciplinary action is not available as lay advocates are unregulated. The most reasonable, though too limited, sanction available is striking the offending submissions from consideration for any purpose in the BSEA proceeding at hand. 801 CMR 1.01(7)(c). This action may have the side benefit of protecting the Parent from unauthorized actions of the advocate that might otherwise be imputed to her. Therefore, pursuant to 801 CMR 1.01(7)(c), 603 CMR 28.08(5) and BSEA Rule XB, and as a direct and logical consequence of the impertinent, frivolous and scandalous content of the material submitted by lay advocate Tami Joia in this matter on June 20, 2011, I will strike all arguments and attachments associated with that submission (see Paragraph 9).4

2. Motion to Dismiss

Taunton argues that the Parent lacks authority to prosecute this BSEA matter because her son has reached majority age and has not delegated educational decision making power to her (603 CMR 28.07(5).) I disagree. This Parent’s IDEA claim involves discrete actions that occurred while the student was a minor. The BSEA appeal was filed when the Student was a minor. Since reaching the age of majority the Student has authorized his Parent to pursue any and all legal matters, without restriction, as his attorney-in-fact. (5 supra )

The Parent is maintaining a legal action that arose while the Student was a minor, and which the student has authorized her to continue according to her own judgment. The Student may not have authorized the Parent to make current educational decisions arising out of his current eligibility for special education. But that authorization is not necessary in order for her to pursue her retroactive claim here under the Power of Attorney she has submitted. Were the hearing to result in an order for current special education services to the Student, the school would require the Student’s consent to participate consistent with the procedures set out at 603 CMR 28.07(5). Since the Parent has produced authorization sufficient to support continuation of this BSEA matter, dismissal is not warranted.5

ORDERS

Based on the foregoing discussion:

1. The Motion of the Taunton Public Schools to Strike the Submissions of June 20, 2011 is GRANTED.

2. The Motion of the Taunton Public Schools to Dismiss is DENIED.

NOTICE OF HEARING

The Hearing will be held on July 26 and July 27, 2011 from 10:00 a.m. until 3:00 p.m. at 75 Pleasant Street in Malden, Massachusetts. Each party will present no more than 4 hours of oral testimony. The Parent will present her witnesses on July 26, 2011. The School will present its witnesses on July 27, 2011. Ralph Friedman will testify by telephone. The parties’ exhibits have previously been submitted, argued, and entered into the Hearing Record. No additional submissions will be accepted. No postponements will be permitted absent extraordinary unforeseeable circumstances.

The issues for hearing are:

1. Whether Taunton Public Schools appropriately responded to the Parent’s December 4, 2009 Request for a Transitional Services Assessment?

2. If not, whether the Student was deprived of a free appropriate public education as a result?

I note that the absence of the stricken material does not affect the substantive presentation of the Parent’s claims as Taunton’s Motion to Dismiss can be decided without it and the requested relief is not available in this forum.

I do note, however, the Parent’s continued failure to comply with direct BSEA Orders. (See paragraph 3 and 14 supra . ) As the noncompliance in this instance does not interfere with the prosecution or resolution of the substance of the appeal, dismissal on this basis at this time is not reasonable.

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